The Lisbon Treaty and Spain: Background, Context and Impact. Jean Monnet/Robert Schuman Paper Series Special Issue 1, August 2012

The year 2010 will be remembered in the European Union (EU) circles of governmental Spain as a crucial milestone regarding the role of the country in one of the most important alliances of world history. During the first semester, from January to June 2010, Spain had previously been scheduled to hold the rotating presidency as done since the times of the inception of the predecessor of the EU, the European Economic Community (EEC). Furthermore, on June 12, Spain would be ready to celebrate the 25th anniversary of its adhesion (along with Portugal) to the European integration experiment, by signing the treaty, effectively acceding to the European Community (EC) on January 1, 1986. While all of this was set to occur, the new Reform Treaty (“of Lisbon”) was set to be implemented as a substitute for the failed constitutional text floated during the first years of the new century. Moreover, these spectacular events unraveled in the middle of one of the worst economic crises of the world, with considerable impact on the evolution of the EU and, most especially, Spain. This paper will review the background, context and impact of particular novel aspects of the new treaty governing the EU and several milestones regarding the experience of Spain in the European process.

La protection des droits de l'homme dans l'Union européenne avant et après le traité constitutionnel. La Constitution représente-t-elle la bonne voie?

Les Communautés européennes et l'Union européenne ont toujours exprimé leur engagement à respecter les droits de l'homme. Depuis la première Convention intergouvernementale chargée de la rédaction du projet de Charte des Droits Fondamentaux (1999-2001), une deuxième Convention a été organisée. La dernière a proposé le projet de Constitution pour l'Union européenne qui par la suite a été rejeté dans deux referenda nationaux et a soulevé de nombreuses questions sur la légitimité de l'Union et son avenir. Récemment, le Conseil de l'Union Européenne a décidé d'abandonner le projet de Constitution pour l'Union européenne et a ouvert la voie vers le traité modificatif. À part la légitimité de l'Union en tant que organisation internationale ou ordre juridique international et tous les problèmes auxiliaires que la constitutionnalisation implique, ce processus est inextricablement lié au sujet très controversé de la politique des droits de l'homme. Conformément au traité constitutionnel, la Charte d'un côté et la Convention européenne des droits de l'Homme de l'autre seraient devenu parties intégrantes du système constitutionnel européen. Par contre, le nouveau traité modificatif comprendra juste un renvoi à la Charte. Néanmoins, le problème de l'Union européenne demeure l'absence d'une politique cohérente avec toutes ses éléments - des instruments écrits contraignants, l'efficacité des voies de recours, une agence des droits de l'homme, un budget et un plan horizontal. Tandis que le traité constitutionnel sans pour autant résoudre tous ces problèmes a représenté un grand pas en avant dans cette direction, le nouveau traité semble être un compromis.

Constructing a ‘moment of crisis’ and its adequate solution

The rejection of the European Constitution marks an important crystallization point for debate about the European Union (EU) and the integration process. The European Constitution was envisaged as the founding document of a renewed and enlarged European Union and thus it was rather assumed to find wide public support. Its rejection was not anticipated. The negative referenda in France and the Netherlands therefore led to a controversial debate about the more fundamental meaning and the consequences of the rejection both for the immediate state of affairs as well as for the further integration process. The rejection of the Constitution and the controversy about its correct interpretation therefore present an intriguing puzzle for political analysis. Although the treaty rejection was taken up widely in the field of European Studies, the focus of existing analyses has predominantly been on explaining why the current situation occurred. Underlying these approaches is the premise that by establishing the reasons for the rejection it is possible to derive the ‘true’ meaning of the event for the EU integration process. In my paper I rely on an alternative, discourse theoretical approach which aims to overcome the positivist perspective dominating the existing analyses. I argue that the meaning of the event ‘treaty rejection’ is not fixed or inherent to it but discursively constructed. The critical assessment of this concrete meaning-production is of high relevance as the specific meaning attributed to the treaty rejection effectively constrains the scope for supposedly ‘reasonable’ options for action, both in the concrete situation and in the further European integration process more generally. I will argue that the overall framing suggests a fundamental technocratic approach to governance from part of the Commission. Political struggle and public deliberation is no longer foreseen as the concrete solutions to the citizens’ general concerns are designed by supposedly apolitical experts. Through the communicative diffusion and the active implementation of this particular model of governance the Commission shapes the future integration process in a more substantial way than is obvious from its seemingly limited immediate problem-solving orientation of overcoming the ‘constitutional crisis’. As the European Commission is a central actor in the discourse production my analysis focuses on the specific interpretation of the situation put forward by the Commission. In order to work out the Commission’s particular take on the event I conducted a frame analysis (according to Benford/Snow) on a body of key sources produced in the context of coping with the treaty rejection.

Treaty shopping in international investment law

Is "treaty shopping" in international investment law "legitimate nationality planning" or "treaty abuse"? This is the question investment arbitral tribunals have been increasingly faced with over past years. This PhD thesis will examine in a systematic and comprehensive manner investment arbitral decisions that have attempted to draw this line. It will show that while some legal approaches taken by arbitral tribunals have started to consolidate, others remain unsettled, contributing to the picture of an overall inconsistent jurisprudence. The thesis will also make proposals de lege ferenda on how States could reform their international investment agreements in order to make them less susceptible to the practice of treaty shopping.

Innovative approaches For enhancing the flow of funds into the Benefit Sharing Fund of the International Treaty on Plant Genetic Resources for Food and Agriculture: an evaluation of options

This report assesses the implications and revenue-generating potential of options for reform of the International Treaty on Plant Genetic Resources for Food and Agriculture in the context of the structure of the global seed industry and the emerging landscape of plant variety innovation for different crops. The implementation of these options would require modifications of Treaty and provisions of the Standard Material Transfer Agreements to alter the nature of payment obligations related to different categories of products, the payment rates under different options and the coverage of crops in Annex-I to the Treaty.

Increasing popular participation in the treaty-making process : the legislative process of Section 190 of the 2007 Constitution of Thailand

Historically, the authority to conclude international treaties was exclusively exercised by administrative bodies (or the chief of state). However, recent studies pointed out that the present legislative bodies have come to play a more active role through ratification or the review of treaties in European and American countries. Harrington (2005) studied judicial reform in British dominions and criticized the past executive-dominant treaty-making process as a “democratic deficit” due to a fear that under this system the nation might be bound by international agreements for which a consensus had not been obtained. These studies indicated that people’s participation in the treaty-making process has increased on a global basis, but neither of them provides sufficient descriptive evidence regarding why and how such procedures were established. The present paper therefore attempts to solve these questions by analyzing the legislative and political process of the treaty-making procedure reform in Thailand’s 2007 constitution as a case study.

Talking with the “pouvoir constituant” in times of constitutional reform: The European Court of Justice on Private Applicants’ Access to Justice. Research Paper in Law 3/2003

[From the Introduction]. European lawyers, at least those dealing predominantly with institutional matters, are living particularly interesting times since the setting-up of the “European Convention on the Future of Europe” in December 2001.1 As the Convention’s mandate, spelled out in rather broad terms in the European Council’s declaration of Laeken,2 is potentially unlimited, and as the future constitution of the European Union (EU) will be ultimately adopted by the subsequent Intergovernmental Conference (IGC), there appears to be a great possibility to clarify, to simplify and also to reform many of the more controversial elements in the European legal construction. The present debate on the future of the European constitution also highlights the relationship between the pouvoir constituant3 and the European Courts, the Court of Justice (ECJ) and its Court of First Instance (CFI), who have to interpret the basic rules and principles of the EU.4 In that light, the present article will focus on a classic theme of the Court’s case law: the relationship between judges and pouvoir constituant. In the EU, this relationship has traditionally been marked by the ECJ’s role as driving force in the “constitutionalisation” of the EC Treaties – which has, to a large extent, been accepted and even codified by the Member States in subsequent treaty revisions. However, since 1994, the ECJ appears to be more reluctant to act as a “law-maker.”5 The recent judgment in Unión de Pequeños Agricultores (UPA)6 – an important decision by which the ECJ refused to liberalize individuals’ access to the Community Courts – is also interesting in this context. UPA may be seen as another proof of judicial restraint - or even as indicator of the beginning of a new phase in the “constitutional dialogue” between the ECJ and the “Masters of the Treaties.”

The Common Agricultural Policy: The Future of the CAP and why real reform will never happen. EUMA Paper Vol. 6 No. 7, May 2010

This paper sets out to examine the Common Agricultural Policy (CAP) of the European Union from its inception to present day 1. Specifically, this paper seeks to answer the following questions: (1) What long-term effects, if any, did the circumstances surrounding, and leading up to the formation of the CAP have; (2) What have internal and external responses been to the CAP; (3) How has the CAP responded to major events both internally (within the European Union), and externally (internationally); (4) What affect does the recently implemented Lisbon Treaty2 have on the CAP, and (5) What is the future of the CAP and CAP reform? In order to answer these questions this paper begins with the contention that the CAP is in fact the largest and strongest driving force of EU expansion. In support of this proposition, this paper first examines the circumstances and events leading to the creation of the CAP in the European Community. Second, this paper examines what long-term effects the circumstances surrounding the CAP’s inception have had on the policy, particularly calling attention to the disproportionate Franco-German CAP benefits. Third, the paper then examines how the CAP has responded to historical events that have had significant effects on the European community, particularly EU expansion, the implementation of the Lisbon Treaty, and the recent worldwide economic crisis. Finally, this paper examines common criticisms of and conflicts surrounding the CAP, both internally and externally, and argues that CAP reform, at least within the current institutional framework of the European Union, can never truly occur.

Lisbon Fado: The European Union under Reform

From the Introduction. To address the uncertainties surrounding the Treaty of Lisbon, this book examines several issues from various angles. Regardless of the results of the second referendum in Ireland and the pending ratifications in Poland, the Czech Republic and Germany, the European Union (EU) will not be the same after the Lisbon Treaty. If it comes into effect, Europeans will enter into a new stage in the deepening of the integration process; if it is rejected, the first decade of the 21st Century will represent a period of institutional stagnation in Europe’s integration. Nonetheless, the chapters in this book share the consensus that, despite its limitations, the Lisbon Treaty will make the EU decision making process more efficient, enhance regional democracy and strengthen its international voice.

Lisbon Treaty: Year I

The completion of the ratification of the Lisbon Treaty (from now on the Treaty) in November and its entry into force on 1 December 2009 marked the end of an extraordinary and unprecedented lengthy process of institutional change of the European Union. The Treaty had been signed on 13 December 2007, almost two years before its entry into force, by no means an excessive duration compared to the ratification of previous modifications of the Treaties. But the Treaty – in strictly legal terms a substantial set of amendments to two previous treaties renamed in the process – has a long history. Initial proposals for institutional reform date back to the German reunification in 1989-1990. They went through lengthy debates that eventually led to the European Convention and the 'Draft Treaty establishing a Constitution for Europe' of 20031 and from there to the 'Treaty establishing a Constitution for Europe' of 20042. If the current form of the Treaty is a clear consequence of the difficulties of the ratification process of the Constitution, the ideas that provide the substance can be traced back to the final years of the past century. The pages that follow are not a legal analysis but an attempt to identify changes and to assess their significance3.

Institutional Reform in the EU. European Policy Brief No. 19, February 2014

This Policy Brief discusses the potential reforms of the EU institutions that can take place during the 2014-2019 legislative term. It argues that negotiations on Treaty change are a possibility, but they should only start in the second part of the legislature. In the meantime, several institutional reforms that can improve the functioning of the EU – and hence increase its legitimacy – should already be considered.

Will Cameron get what he wants? Anticipating reactions to Britain’s EU reform proposals. CEPS Commentary, 29 October 2015

After months of speculation about the British Prime Minister’s specific demands in terms of the “renegotiation” of the UK’s relationship with the EU, David Cameron has bowed to pressure from the heads of state or government of the other EU member states and committed himself to setting out the UK’s specific “concerns” in writing by early November. While we cannot be certain of the contents of David Cameron’s missive to the EU, his recent pronouncements before Parliament set out an agenda whose contours have become quite clear. In this Commentary the authors consider how far the other EU member states might be willing to accommodate Cameron’s demands and provide him with the political capital he seeks to lead the ‘in’ campaign. They distinguish four different attitudes among EU countries, and advocate a constructive approach that sets the scene for a Convention after 2017 – one that opens the treaty for a revision that could accommodate both the British demands for an ‘opt-out’ from ever closer union and gives leeway to those who wish to integrate further. Putting emphasis on strengthening the single market in the more immediate term would allow the Prime Minister to show his home audience that he is a leading reformer and that the EU gives oxygen to the British economy.This is an obvious area where he might be able to seal deals during the UK’s Presidency of the Council of the EU in the second half of 2017. The authors also consider what the European Council Conclusions on the UK’s wish list for EU reform might look like, given that any treaty revision before the time set for the UK referendum is unattainable. They present the results of a two-day simulation exercise involving a cross-section of national experts and present mock European Council Conclusions on the areas of ever closer union; the role of national parliaments; competitiveness; economic and monetary integration; and the free movement of labour.